Leasing and Property Newsletter – December 2017
In this edition our team report on the following topics:
- A matter in which multiple representations by a lessor were alleged to be misleading and deceptive by a lessee at Tuggeranong Town Centre;
- A NSW Supreme Court Case dismissing a lessee’s claim that termination of a lease for unpaid rent was unconscionable;
- An update on the recently amended Environmental Planning and Assessment Act.
The Carroll & O’Dea Leasing and Property Team
Misleading and Deceptive Conduct within the Tuggeranong Town Centre case
Tuggeranong Town Centre Pty Limited v Brenda Hungerford Pty Limited (No 2)  ACTSC 88
Earlier this year the Supreme Court of the Australian Capital Territory ruled in favour of a retail landlord (and the previous owner of that shopping centre) against a tenant who had abandoned premises which were the subject of a sublease. The shopping centre in question was the Hyperdome in the Tuggeranong Town Centre and the store was a retail gift and homewares store called “Giving and Living”. The store was sold to the defendant in this matter, Benda Hungerford Pty Limited (“BHPL”). BHPL abandoned the premises on 31 January 2008 and the sublessor commenced proceedings for money owed under the sublease. BHPL raised a number of counterclaims, including issues of misrepresentation. While the issues of misrepresentation were only a part of a 1259 paragraph judgment, they provide some insight in to how this area of law is interpreted by the Courts.
Termination for unpaid rent: profiting from lessee mistakes?
Gan v Shop 3, 228-230 Hanvaylee Parade Kensington Pty Ltd  NSWSC 1322
In this recent appeal decision from NSW Supreme Court, the lessee (a Malaysian Restaurant) claimed that the lessor’s actions in enforcing the lease, issuing breach notices and ultimately ending the lease by re-entry were contrary to an implied obligation to act in good faith and unconscionable. The Court confirmed the Tribunal’s decision that it was not a breach of good faith to enforce clear contractual rights.
Changes to NSW Planning Act
The key legislation in New South Wales’ planning laws, the Environmental Planning and Assessment Act 1979 (“EPA Act”), was recently amended with a range changes following a public consultation previous covered in this newsletter. The new changes cover a range of areas and include the introduction of new types of plans, review requirements of councils and adds powers in enforcing the EPA Act. Below is a summary of some of the major changes that the amendments bring.